People v. Sierra

143 A.D.2d 1065, 533 N.Y.S.2d 751, 1988 N.Y. App. Div. LEXIS 10502

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1988
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered August 26, 1986, convicting him of murder in the second degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is affirmed.

We find no irregularity in the Grand Jury proceeding which might have presented any real possibility of prejudice to the defendant such as to warrant dismissal of the indictment (CPL 210.20 [1] [c]; 210.35 [5]). The defendant was afforded ample opportunity to present any evidence supporting a potential justification defense and the prosecutor was not obligated to search for evidence favorable to the defendant (see, People v Lancaster, 69 NY2d 20, 26, cert denied 480 US 922; cf., People v Rubin, 77 AD2d 578). Nor does the claimed inadequacy in the prosecutor’s instructions to the jury furnish a ground for dismissal of the indictment since the prosecutor read the complete statutory definition of justification (see, People v Calbud, Inc., 49 NY2d 389, 395, n 1).

The defendant’s claim of error with respect to the procedure followed in executing his waiver of a jury trial has not been preserved for appellate review (CPL 470.05 [2]; see, People v Johnson, 51 NY2d 986; People v Davidson, 123 AD2d 782, 783, lv denied 69 NY2d 826), and, under the circumstances of this case, there is no basis to review this issue in the interest of justice.

We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur.